Mediation Training

Programme
By Adv. (Dr.) Santosh A. Shah
Advocate, Lecturer in Law &
Mediator, Kolhapur
 Session 1
Introduction
ADR Mechanism and other modes
of settlement.
A) Scope and contents of S. 89 of C.P.C &
Mediation Rules, 2006
B) Difference between Mediation and other
ADR mechanism
 People are abandoning the justice
system
 Criminal has more rights than the

victim, Defendants can defeat

legitimate claims of the Plaintiff
 Business transactions are

frustrated due to costs and delays

 Should we accept the status quo or
Try to make a change ?
 There once was a smoker so

disturbed by reading stories about

the harmful effect of smoking that
he decided to do something about
the problem- He stopped reading !
 Adversarial Legal System, too much
emphasis on litigation.
 21st Century India needs effective and
multi door Dispute Resolution System.
 Voltaire : I was ruined twice in my life,
once when I lost the law suit and once
when I won a law suit !
 India for 1 lakh people – 1 Judge ,
In the U.S for 1 lakh people – 10 Judges.
 A dispute is a problem to be solved, together,
rather than a combat to be won.
 Litigant not a mere recipient of the Court verdicts
but consumer of justice delivery system: C.J
Mohit Shah, Bombay High Court.
 Different litigants want different methods of
dispute resolution
 - Prof. Frank Sander of Harvard Law School-
“Please re-imagine the Civil Courts as a collection
of dispute Resolution Procedures tailored to fit the
variety of disputes .”
 Awareness Building of ADR a must.
 ADR Values  Adjudication Values

 Much Compromise  Very Little

Compromise

 Help from the  Adjudicator decides

mediator in rules.
communication, in
mood and tone, in
reality checks, etc.
 ADR Values  Adjudication Values
 Party-to-party  Lawyer to tribunal
communications. communication.

 Party Control,  All control given

nothing happens away to a stranger; a
without party stranger rules.
consent.
 ADR Values  Adjudication Values
 Inquiry into and  Inquiry to
preservation of relationships is
relationships. irrelevant.
 Broadened relevance  Narrow relevance,
to include focus on essentially limited to
interests, values, goals, issues defined by the
aspirations, as well as
pleadings.
relationships
 ADR Values  Adjudication Values
 Focus on future and  Focus backward, on
future relationships application of the rule
of law only to past
 Cultural factors are acts.
important.  Cultural factors tend
to receive de minimis
attention. The law
written in another
factual context is
applied.
 ADR Values  Adjudication Values

 Value  Stranger determines

misunderstandings value.
are massaged out.
 Process Flexibility  "One size" of rules
tends to be force-fit
upon all disputes.
 ADR Values  Adjudication Values

 The law is determined,  The law is determined

applied or disregarded and applied by the
by the parties. stranger.
 The facts are  The facts are found on
determined sometimes
compromised or irresponsible evidence,
disregarded by the by stranger(s).
parties. .
  MEANING OF MEDIATION
 Mediation is the process by which the
participants together with the assistance of a
neutral person or persons, systematically isolate
disputed issues in order to develop options,
consider alternatives and aim to reach a
consensual agreement that will accommodate
their needs.
 It is not an adjudicative process, where a neutral
third party decides the outcome of the case.
‘Mediation’ means the process by which a
mediator appointed by parties or by the
Court, as the case may be, mediates the
dispute between the parties to the suit by the
application of the provisions of the
Mediation Rules in Part II, and in
particular, by facilitating discussion between
parties directly or by communicating with
each other through the mediator, by
assisting parties in identifying issues,
reducing misunderstandings, clarifying
priorities, exploring areas of compromise,
generating options in an attempt to solve the
dispute and emphasizing that it is the
parties’ own responsibility for making
decisions which affect them.
 MEANING OF CONCILIATION
 Conciliation is a consensus based
dispute resolution process in which the
parties to a dispute meet with a conciliator
to discuss mutually acceptable options for
resolution of the dispute. The conciliator has
some input into the resolution of the dispute
reached by the parties in the sense that the
conciliator encourages the parties to
consider options for settlement, which are
fair in all the circumstances, including the
precedents for resolution of similar
complaints within the formal justice system.
‘Conciliation’ means the process by which a
conciliator who is appointed by parties or by
the Court, as the case may be, conciliates the
disputes between the parties to the suit by the
application of the provisions of the
Arbitration and Conciliation Act, 1996 (26 of
1996) in so far as they relate to conciliation,
and in particular, in exercise of his powers
under sections 67 and 73 of that Act, by
making proposals for a settlement of the
dispute and by formulating or reformulating
the terms of a possible settlement; and has a
greater role than a mediator.
 Various ADR Mechanisms
Afcons Infrastructure Ltd & Anr.Vs.
Cherian Varkey Construction Co (P)
Ltd.& Ors.
Supreme Court
Judgment given on 26 July 2010 by R.V. Raveendran J. & J.M. Panchal J.

 Arbitration: In the event of referral by the court to

Arbitration due to arbitration agreement between
the parties, the case will go outside the stream of
court permanently and will not come back to the
court.
 Conciliation : As contrasted from arbitration, when
a matter is refereed to conciliation, the matter does
not go out of the stream of court permanently. If
there is no settlement, the matter is returned to the
court for framing of issues and proceeding with the
trial.
 Mediation : If the suit is complicated or lengthy,
mediation will be recognized choice.
 Lok Adalat: If the suit is not complicated and
disputes are easily sortable or and be settled by
applying clear legal principles Lok Adalat will be
preferred choice.
 Judicial Settlement : If the court feels that
suggestion and guidance by a judge will be
appropriate, it can refer it to another judge for
dispute resolution.
Client’s Expectations :
Reliefs
Speed
Solution
Fair Hearing
Peace of Mind
Tell their story in detail
Cost
Discovery
Participation
Execution
 What A D R offers to Advocates
 Stable Fees
 Client’s Satisfaction
 Speedy Solutions
 Avoid Adjudicatory Processes
 Options open on failure
 Less Hassle
 Restoration of client’s faith in system
QUALITIES OF MEDIATORS
 - Facilitator / Communicator
 - Follow broad frame work
 - Give importance to Private Meetings
 - Persuasive Techniques
 - Discreet / active participation
 - Build bridges
 - Human approach
 Give importance to parties and put
solutions in their mind
Parties problem are minor,
pleadings make a wide gap

Take help of Advocates

Impartial and independent
Make required Amendments
Liberty to mould procedures
Congratulate parties and Advocates -

whatever is the result

 Tips for a Mediator
Courtsey / respect
Confidentiality
Impartiality
Empathy ; Compassion
Integrity ; trustworthiness
Speed
Without Excessive Cost
Active Listening
Questioning
Reframing
Option Generation
Breaking Impasses
Reality Testing
Non an Advocate of the Party
Patience and Perseverance
Interpersonal skills
Good Human Being
 Following words are commonly
used in Mediation
 BATANA : Best Alternative To A
Negotiated Agreement
 WATNA : Worst Alternative To A

Negotiated Agreement
 MLATNA : Most I likely Alternative

To A Negotiated Agreement.
 Story of Cattles
Dispute relating to partition of 17 cattles
17

1/2 1/3 1/9

 Mediator to add one cattle
17 +1

1/2 1/3 1/9

9 6 2
Two children fighting for a larger
piece of a cake.
Both demand, they be allowed to
cut and have the cake first.
Mediator – One cuts and the
other gets the choice for picking
up the piece first.
 Two brothers fighting over an
orange
 Ad-judication – cut into 2 and give

each ½ share
 – Mediation -One Brother may

want the orange, the other may

want the cover.
 Fight between a Husband and Wife
(universal )
 They start sleeping separately –
child one night sleeps with Father other
night sleeps with mother-
First night tells the father,
“ Daddy, Mom yesterday told me that she
too goes wrong and feels bad about it”, -
Next night he tells the mother, “Mom,
Daddy tells me that he too is wrong and
feels bad about it”. – Third night the
husband & wife came together.
 SALEM ADVOCATES BAR ASSOCIATION V/S.
UNION OF INDIA ( II)
 2005(5) All MR. (SC) 876
 1. There should be a panel of
well trained conciliators / mediators to
which it may be possible for the Court
to make a reference
 2. Respective High Courts to
take appropriate steps for making
rules.
 3. Draft rules accepted by the
Supreme Court.
 RULES SUGGESTED BY LAW
COMMISSION
Framed by Bombay High Court.
Civil Procedure Alternative Dispute
Resolution And Mediation Rules, 2006.
PART II
CIVIL PROCEDURE MEDIATION RULES
Rule 2 : Appointment of Mediator

A] Parties to a suit may all agree on the

name of the sole mediator for mediating
between them.

B] Where, there are two sets of parties

and are unable to agree on a sole
mediator, each set of parties shall
nominate a mediator.
C] parties agree on a sole mediator
under clause (a) or where parties
nominate more than one mediator
under clause (b), the mediator need
not necessarily be from the panel of
mediators referred to in Rule 4 but
should not be a person who suffers
from the disqualifications referred to
in Rule 5.
D] Where there are more than two sets
of parties having diverse interests,
each set shall nominate a person on
its behalf and the said nominees shall
select the sole mediator and failing
unanimity in that behalf, the Court
shall appoint sole mediator.
 Rule 3 : Panel of medaitors
The High Court, the Courts of the
Principal District and sessions Judge in
each District or the Courts of the
Principal Judge of the City Civil Court
or Courts of equal status and Family
Courts shall, prepare a panel of
mediators after obtaining the approval
of the High Court.
 Rule 4 : Qualifications of persons to be
empanelled under Rule 3

The following shall be treated as qualified

and eligible for being enlisted in the panel of
mediators under Rule 3, namely :-

(a) (i) Retired Judges of the Supreme Court of

India ;
(ii) Retired Judges of the High Court;
(iii) Retired District and Sessions Judges or
retired Judges of the City Civil Court or
Courts of equivalent status
 (b) Legal practitioners with at least
15 years standing at the Bar at the
level of the Supreme Court or High
Court; or the District Courts or
Courts of equivalent status.
 ( c) Experts or other professionals
with at least 15 years standing or
retired senior bureaucrats or retired
senior executives .
 (d) Institutions which are themselves
experts in mediation and have been
recognized as such by the High
Court, provided the names of its
members are approved by the High
Court initially or whenever there is
change in membership.
 Rule 5: Disqualifications of Persons:
 The following persons shall be
deemed to be disqualified for being
empanelled as mediators:
 (i) Any person who has been
adjudged as insolvent or is declared
of unsound mind.
 (ii) Or any person against
whom criminal charges involving
moral turpitude are framed by a
criminal court and are pending, or
 (iii) Persons who have been
convicted by a criminal court for any
offence involving moral turpitude;
 (iv) Any person against
whom disciplinary proceedings
have been initiated by the
appropriate disciplinary authority
which are pending or have
resulted in a punishment.
(v)
 Any person who is
interested or connected with the
subject-matter of dispute or is
related to any one of the parties
or to those who represent them,
unless such objection is waived
by all the parties in writing.
 (vi) Any legal practitioner
who has or is appearing for any of
the parties in the suit or in any
other suit or proceedings.
 (vii) Such other categories of
persons as may be notified by the
High Court.
 Rule 11: Procedure of mediation
(a) The parties may agree on the
procedure to be followed by the
mediator in the conduct of the
mediation proceedings.
(b) Where the parties do not agree on any
particular procedure to be followed by
the mediator , the mediator shall follow
the procedure hereinafter mentioned,
namely:
 (i) he shall fix, in consultation with
parties, a time schedule the dates and the
time of each mediation session, where all
parties have to be present ;

 (ii) he shall hold the mediation conference

in accordance with the provisions of Rule
6;

 (iii) he may conduct joint or separate

meetings with the parties;
 (iv) each party shall , ten days before a
sessions, provide to the mediator a
brief memorandum setting forth the
issues, which according to it, need to be
resolved, and its position in respect to
these issues and all information
reasonably required for the mediator
to understand the issue; such
memoranda shall also be mutually
exchanged between the parties;
 (v) each party shall furnish to the mediator,
copies of pleadings or documents or such
information as may be required by him in
connection with the issues to be resolved.
Provided that where the mediator is of the
opinion that he should look into any original
document , the Court may permit him to look into
the original document before such officer of the
Court and on such date or time as the Court may
fix.
 (vi) each party shall furnish to the mediator such
other information as may be required by him in
connection with the issues to be resolved.
  Rule 12: Mediator not bound by
Evidence Act, 1872 or Code of Civil
Procedure, 1908:
 The mediator shall not be bound by the
Code of Civil Procedure, 1908 or the
Evidence Act, 1872, but shall be guided
by principles of fairness and justice, have
regard to the rights and obligations of the
parties, usages of trade, if any, and the
circumstances of the dispute.
 Rule 16: Role of Mediator:
 The mediator shall attempt to facilitate
voluntary resolution of the dispute by the
parties, and communicate the view of each
party to the other, assist them in identifying
issues, reducing misunderstandings,
clarifying priorities, exploring areas of
compromise and generating options in an
attempt to solve the dispute, emphasizing
that it is the responsibility of the parties to
take decision which effect them; he shall not
impose any terms of settlement on the
parties.
 Rule 17: Parties alone responsible for
taking decision:
 The parties must understand that the

mediator only facilitates in arriving

at a decision to resolve disputes and
that he will not and cannot impose
any settlement nor does the mediator
give any warranty that the mediation
will result in a settlement. The
mediator shall not impose any
decision on the parties.
 Rule 18:
Time limit for completion of
mediation :
Sixty days extendable by thirty
days
 Rule 26 : Fee of mediator and costs :
 (1) At the time of referring the

disputes to mediation, the Court

shall, after consulting the mediator
and the parties, fix the fee of the
mediator.
 (2) As far as possible a consolidated
sum may be fixed rather than for each
session or meeting.
 (3) Where there are two mediators as

in clause (b) of Rule 2, the Court shall

fix the fee payable to the mediators
which shall be shared equally by the
two sets of parties.
 (4) The expense of the mediation
including the fee of the mediator, costs
of administrative assistance, and other
ancillary expenses concerned, shall be
borne equally by the various contesting
parties or as may be otherwise directed
by the Court.
 (5) Each party shall bear the costs for
production of witnesses on his side
including experts, or for production of
documents.
 (6) The mediator may, before the
commencement of mediation, direct the
parties to deposit equal sums, tentatively,
to the extent of 40 % of the probable costs
of the mediation, as referred to in clauses
(1), (3) and (4). The remaining 60% shall
be deposited with the mediator, after the
conclusion of mediation. For the amount
of cost paid to the mediator, he shall issue
the necessary receipt and a statement of
account shall be filed, by the mediator in
the Court.
 (7) The expense of mediation
including fees, if not paid by the
parties, the Court shall on the
application of the mediator or
parties, direct the concerned parties
to pay, and if they do not pay, the
Mediator or the parties, as the case
may be, shall recover the said
amount as if there was a decree.
 (8) Where a party is entitled to
legal aid under section 12 of the
Legal Services Authority Act,
1987, the amount of fee payable
to the mediator and costs shall be
paid by the concerned Legal
Services Authority under that
Act.
 Rule 27: Ethics to be followed by
Mediator:
 The mediator shall:
 (1) Follow and observe these
Rules strictly and with due diligence;
 (2) Not carry on any activity or
conduct which could reasonably be
considered as conduct unbecoming of a
mediator;
 (3) Up hold the integrity and
fairness of the mediation process;
 (4) Ensure that the parties
involved in the mediation and
fairly informed and have an
adequate understanding of the
procedural aspects of the process;
 (5) Satisfy himself/herself
that he/she is qualified to
undertake and complete the
assignment in a professional
manner;
 (6) Disclose any interest or
relationship likely to affect
impartiality or which might seek an
appearance of partiality or bias;
 (7) Avoid, while
communicating with the parties,
any impropriety or appearance of
impropriety;
 (8) be faithful to the relationship
of trust and confidentiality
imposed in the office of
mediator ;
 (9) conduct all proceedings
related to the resolutions of a
dispute, in accordance with the
applicable law;
 (10) recognize that mediation is based on
principles of self-determination by the
parties and that mediation process relied
upon the ability of parties to reach a
voluntary, undisclosed agreement.;
 (11) maintain the reasonable
expectations of the parties as to
confidentiality ;
 (12) refrain from promises or
guarantees of results.
 C) Role and responsibility of
Judicial Officers u/s. 89 of CPC
Afcons Infrastructure Ltd & Anr.
Vs.
Cherian Varkey Construction Co (P)
Ltd.& Ors.
Supreme Court
Judgment given on 26 July 2010 by R.V.
Raveendran J. & J.M. Panchal J.
 U/s 89 of C.P.C, the court is only
required to formulate a “short
summary of disputes” and not “terms
of settlement”.
 The civil court should invariably
refer cases to ADR process except in
certain recognized excluded
categories by giving reasons.
 The proper stage to refer the parties
to ADR mechanism is when the
matter is taken for preliminary
examination of the parties [ stage of
Admission and Denial ] u/o 10 of the
Code.
 The definition of judicial settlement and
mediation in clauses (c ) and (d) of section
89(2) shall have to be interchanged to
correct the draftsman’ error
 (c ) for mediation, the court shall refer the
same to a suitable institution or person and
such institution or person shall be deemed
to be a Lok Adalat and all the provisions of
the Legal Services Authority Act, 1987 (39
of 1987) shall apply as if the dispute were
referred to a Lok Adalat under the
provisions of that Act

(d) for judicial settlement the court
shall effect a compromise between the
parties and shall follow such procedure
as may be prescribed.
Above changes made by
interpretative process shall remain in
force till the legislature corrects the
mistakes, so that section 89 is not
rendered meaningless and infructuous.
 The following categories of cases are normally
considered to be not suitable for ADR process
having regard to their nature :
 (i) Representative suits under Order 1 Rule 8
CPC which involve public interest or interest of
numerous persons who are not parties before the
court. (In fact, even a compromise in such a suit is
a difficult process requiring notice to the persons
interested in the suit, before its acceptance).
 (ii) Disputes relating to election to public offices
(as contrasted from disputes between two groups
trying to get control over the management of
societies, clubs, association etc.)
 (iii) Cases involving grant of authority by the
court after enquiry, as for example, suits for grant
of probate or letters of administration.
 (iv) Cases involving serious and specific
allegations of fraud, fabrication of documents,
forgery, impersonation, coercion etc.
 (v) Cases requiring protection of courts, as for
example, claims against minors, deities and
mentally challenged and suits for declaration of
title against government.
 (vi) Cases involving prosecution for
criminal offences.
 All other suits and cases of civil nature in
particular the following categories of cases
(whether pending in civil courts or other
special Tribunals/Forums) are normally
suitable for ADR processes :
 (i) All cases relating to trade, commerce and
contracts, including - disputes arising out of
contracts (including all money claims); -
disputes relating to specific performance;
 - disputes between suppliers and
customers;
 - disputes between bankers and
customers;
 - disputes between developers/builders
and customers; - disputes between
landlords and tenants/licensor and
licensees; - disputes between insurer
and insured;

(ii) All cases arising from strained or
soured relationships, including - disputes
relating to matrimonial causes,
maintenance, custody of children;
 - disputes relating to partition/division
among family members/co- parceners/co-
owners; an
 - disputes relating to partnership among
partners.
 (iii) All cases where there is a need for
continuation of the pre-existing relationship
in spite of the disputes, including
 - disputes between neighbours (relating to
easementary rights, encroachments, nuisance
etc.);
 - disputes between employers and employees;
 - disputes among members of
societies/associations/Apartment owners
Associations;
 (iv) All cases relating to tortious liability including
- claims for compensation in motor accidents/other
accidents; and
 (v) All consumer disputes including
 - disputes where a
trader/supplier/manufacturer/service
provider is keen to maintain his
business/professional reputation and
credibility or `product popularity.
 The above enumeration of `suitable' and
`unsuitable' categorization of cases is not
intended to be exhaustive or rigid. They are
illustrative, which can be subjected to just
exceptions or additions by the
court/Tribunal exercising its
jurisdiction/discretion in referring a
dispute/case to an ADR process.
Nothing prevents the Court form resorting to
S. 89 even after framing of issues, but once
evidence is commenced the Court will be
reluctant to refer the matter to ADR lest it
becomes a tool for protracting the trial.
 The Role of Judges
 Matrimonial cases, Civil recovery, MVAC,
Commercial Litigation .
 Older cases
 Experience of a Judge important
 S.125 Cr.P.C., S. 138 N.I.Act.
 Domestic Violence Act S. 14 Counselling
 Cruelty by husband or relative (S. 498 A.
IPC)
 Cases should not involve complex legal
issues or many parties
 Mediation should not be intended to
delay legal proceeding.
 Creation of atmosphere conducive for
settlement where parties are honestly
willing to explore the possibilities of
settlement.
 Voluntary and confidential process .
 Averness building about the benefits of
ADR amongst Judges, Lawyers and
Litigants
 Session II

Role of Referral Judges

D) Role of Director / Co-ordinator
E) Communication between Referral
Judges and Mediators
 Appointment of a full time co-
ordinator
The full time judge in-charge and co-
ordinator of the Mediation Centre, is
appointed to continuously and
unflinchingly promote mediated
settlement. He would also screen the
cases sent by referral Judges to
recommend appropriate mediator
having expertise in the given subjuct.
 To keep continuous supervision on the
progress of each case referred for mediation.
 To ensure that mediation is completed in
specified time by the mediator as per Rules.
 To submit periodical report to the Referral
Judge before the next date of hearing of the
case about the status of mediation proceedings.
 To submit monthly returns in respect
of disposal of case to Mediation
Monitoring Committee Main
Mediation Centre, Mumbai.
 To maintain updated list of Mediators.
To ensure the none of the mediator on the panel is
over burdened with Mediation work on account of
direct appointment by the Court in different case.
The ratio to be maintained shall not exceed ten
cases per Mediator at any given point of time. If
any discrepancy is noticed in this behalf, it should
be forthwith brought to the notice of the
concerned court which had appointed that
mediator by submitting interim report so that
some other mediator can be substituted without
any loss of time.
 The Co-ordinator shall as far possible appoint
mediator by consent of parties in cases where the
Court has not appointed mediator while making
reference for mediation.
 To ensure that feedback is received from the
participants in every Mediation Case to analyse
the same and take corrective measures where
necessary.
 To inspect complaint box on regular basis and
take follow up action on complaint or suggestion
so received.
 Publish periodical handbills / pamphlets including
on local cable TV, Theatre, etc. about the concept
of Mediation and its benefit.
 Informative pamphlets be displayed at
conspicuous places in police station, court
premises, Tehsil offices, Village Grampanchayat.
etc.
 Ensure that informative brochures / pamphlets
are circulated with court summons / notices to the
litigants and also regularly displayed on the notice
board for lawyers / litigants in the court complex.
 Session III
Role of Referral Judges
Post Mediation Stage
A) Execution of Settlement
B) The process of cases where mediation
failed.
 Afcons Infrastructure Ltd & Anr.Vs.
Cherian Varkey Construction Co (P)
Ltd.& Ors.
Supreme Court
Judgment given on 26 July 2010 by R.V. Raveendran J. & J.M. Panchal J.

 When a matter is settled through conciliation the

settlement agreement is enforceable as it is decree
of the court having regard to S. 74 read with S. 30
of the A.C. Act.[ Like on Arbitral Award ]
 When settlement takes place before Lok Adalat, the
Lok Adalat award is also deemed to be decree of
the civil court and executable as such u/s 21 of
Legal Service Authority Act, 1931.
 Where the reference is to conciliation,
mediation or Lok Adalat through court,
the settlement will have to be placed
before the court for making a decree in
terms of it by application of principles of
u/o 23 R. 3 of the Code, as the Court
continues to retain control and
jurisdiction over the cases which it refers.
 Rule 24 : Settlement Agreement
(1) Where an agreement is reached between
the parties in regard to all the issues in the
suit or some of the issues, the same shall be
reduced to writing and signed by the parties
or their power of attorney holder. If any
counsel have represented the parties, they
shall attest the signature of their respective
clients.
 (2) The agreement of the parties
so signed and attested shall be
submitted to the mediator who
shall, with a covering letter
signed by him, forward the same
to the Court in which suit is
pending.
 (3) Where no agreement is arrived at between
the parties, before the time limit stated in Rule
18 or where, the mediator is of the view no
settlement is possible, he shall report the same
to the said Court in writing.
Provided that wherever the mediation fails,
the Mediator shall not express any opinion on
the merits or demerits of the matter, conduct
of the parties, the nature of process or causes
which led to failure of mediation.
 Rule (25): Court to fix a date for
recording settlement and passing decree :
 (1) Within seven days of the receipt of any
settlement, the Court shall issue notice to
the parties fixing a day for recording the
settlement, such date not being beyond a
further period of fourteen days from the
date of receipt of settlement, and the
Court shall record the settlement, if it is
not collusive.
 (2) The Court shall then pass a
decree in accordance with the
settlement so recorded, if the
settlement disposed of all the
issues in the suit.
 C) Confidentiality
 Rule 20: Confidentiality, Disclosure and
Inadmissibility of Information:
 (1) When a mediator receives confidential
information concerning the dispute from
any party, he shall disclose the substance
of that information to the other party, if
permitted in writing by the first party.
 (2) When a party gives
information to the mediator subject to a
specific condition that it be kept
confidential, the mediator shall not
disclose that information to the other
party, nor shall the mediator voluntarily
divulge any information regarding the
documents or what is conveyed to him
orally as to what transpired during the
mediation.
 (3) Receipt or perusal, or preparation of
records, reports or other documents by
the mediator, or receipt of information
orally by the mediator while serving in
that capacity, shall be confidential and
the mediator shall not be compelled to
divulge information regarding the
documents nor in regards to the oral
information nor as to what transpired
during the mediation.
 (4) Parties shall maintain
confidentiality in respect of events
that transpired during mediation
and shall not rely on or introduce the
said information in any other
proceedings as to :
 (a) views expressed by a party in the
course of the mediation proceedings ;
 (b) documents obtained during the
mediation which were expressly
required to be treated as
confidential or other notes, drafts or
information given by parties or
mediators ;
 ( c) proposals made or views
expressed by the mediator ;
 (d) admission made by a party in the

course of mediation proceedings ;

 (e) the fact that a party had or had

not indicated willingness to accept a

proposal ;
 (5) There shall be no stenographic or
audio or video recording of the
mediation proceedings.
 (6) A Mediator may maintain personal
record regarding dates fixed by him and
the progress of the mediation for his
personal use.
 Rule 21 : Privacy
Mediation sessions and meetings are
private ; only the concerned parties or
their counsel or power of attorney
holders can attend . Other persons may
attend only with the permission of the
parties or with the consent of the
mediator.
 Rule 22 : Immunity
Notwithstanding anything contained in
any other law for the time being in
force and subject to the provisions of
the Contempt of Courts Act, no
Court shall entertain or continue any
civil or criminal proceedings against
any person who is or was a Mediator
appointed by the Court, for any act,
thing or word
committed, done or spoken by him when, or in
the course of, acting or purporting to act in
the discharge of his officially delegated
function as Mediator, nor shall he be
summoned by any party to the suit to appear
in a Court of law to testify in regard to
information received by him or action taken
by him or in respect of drafts or records
prepared by him or shown to him during the
mediation proceedings.
 Afcons Infrastructure Ltd & Anr.Vs.
Cherian Varkey Construction Co (P)
Ltd.& Ors.
Supreme Court
Judgment given on 26 July 2010 by R.V. Raveendran J. & J.M. Panchal J.
 Conclusion : Sec. 89 appears to be non- starter
with many courts, Though the process u/s 89
appears to be lengthy and complicated, in
practice, the process is simple – know the
dispute, exclude unfit cases, ascertain consent
for arbitration and conciliation, if there is no
consent select Lok Adalat for simple cases and
mediation for all other cases, reserving
reference to judge assistance settlement only in
exceptional or special cases
 Future of ADR – Gradual Growth
Role of Government to fund the ADR
system.
Rise of private mediation centers.
Lord Denning : Packer Vs Packer
Denning L J in Packer v Packer [ 1954] P 15 at 22.
“What is the argument on the other side?
Only this, that no case has been found in
which it has been done before. That
argument does not appeal to me in the least.
If we never do anything which has not been
done before, we shall never get anywhere.
The law will stand still whilst the rest of the
world goes on: and that will be bad for
both,”
 A New Beginning

HIGH COURT OF GUJARAT –MEDIATION

Thank you .